Palmer & Rey v. Marysville Democrat Publishing Co.

The Court. — This is an-action to recover possession of a certain printing-press delivered by plaintiffs' assignors to one McWhorter, under a contract similar in terms to that which was under consideration in the case of Palmer v. Howard, 72 Cal. 293; 1 Am. St. Rep. 60.

When the plaintiffs rested at the trial, the defendant moved the court for a nonsuit, upon several grounds. The motion was granted, and the only question for consideration is, whether the court erred in its ruling.

[169]McWhorter sold the property to Holland & Crane, and they had full notice of the terms-and conditions under which the former had secured possession of it.

The agreement of June 27,1887, was binding not only upon McWhorter, but upon subsequent purchasers with notice of the conditions under which McWhorter took and held the property.

Assuming that the plaintiffs were required to prove that the defendant took the property with notice of the facts, the grounds of the motion for a nonsuit do not specify a failure to prove such notice; and under the rule well established here, a nonsuit cannot be granted, unless the ground upon which it is supported was called to the attention of the court and the plaintiffs at the time the motion was made. None of the grounds stated in the statement on motion for a new trial is well taken.

Judgment and order reversed, and cause remanded for a new trial.

Rehearing denied.